Citation Nr: 1329837
Decision Date: 09/18/13 Archive Date: 09/25/13
DOCKET NO. 10-13 044 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
St. Louis, Missouri
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim for service connection for left eye disability, and if so, whether service connection, to include as secondary to service-connected right eye enucleation, is warranted.
2. Entitlement to an increased rating for right eye enucleation, currently rated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jonathan Tracy, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1969 to December 1969.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
The Board notes that the Veteran's claim for service connection for a left eye disability was previously denied in July 1999. That decision was not appealed to the Board and became final. The Veteran filed to reopen the claim in March 2008. In the February 2009 rating decision, the RO found that no new and material evidence had been submitted and denied reopening the Veteran's claim. However, the Veteran argued in his August 2009 notice of disagreement that he should be afforded an examination. The RO granted the Veteran's request and a VA examination was conducted in February 2010. Subsequently, the RO issued a statement of the case in February 2010 where new and material evidence was found to have been submitted. The RO reopened the claim for service connection but denied it on the merits.
The Board is required to address the issue of whether the Veteran submitted new and material evidence despite the RO's findings. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim. Id. As such, the issues have been captioned as set forth above.
The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that most of the documents are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. The only document in the Virtual VA file that is relevant and not included in the paper claims file is a written brief presented by the Veteran's representative dated in August 2013.
FINDINGS OF FACT
1. All notification and development action needed to fairly adjudicate the claims herein decided have been accomplished.
2. Certain evidence that is not cumulative or redundant and relates to an unestablished fact necessary to substantiate the claim for service connection for a left eye disability has been received since the July 1999 rating decision.
3. The Veteran's left eye disability was not caused or aggravated by his service-connected right eye enucleation or his military service.
4. The Veteran suffered right eye enucleation in service and the Veteran's left eye does not have corrected distance central visual acuity of 20/50 or worse.
CONCLUSIONS OF LAW
1. New and material evidence has been received to reopen the Veteran's claim for service connection for left eye disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156 (2013).
2. Service connection for left eye disability is not warranted. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013).
3. A rating in excess of 40 percent for right eye enucleation is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6063 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be provided to the claimant before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirement applies to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The RO provided the Veteran pre-adjudication notice by a letter dated in October 2008. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.
In a new and material evidence claim, the notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1(2006). The October 2008 RO letter informed the Veteran of the reason for the prior denial of the claim for service connection which he now seeks to reopen and what was needed to reopen the claim. Accordingly, the duty to notify has been fulfilled.
VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
In this instance, the claims file contains the Veteran's service treatment records, VA treatment records, private treatment records and the Veteran's own assertions in support of his claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993).
In addition, the RO arranged for a VA examination in February 2010 to assess the Veteran's vision. Originally, the RO denied the Veteran's claim without providing the Veteran with a VA examination, but one was provided in February 2010.
The Board finds that the examination obtained in this case was more than adequate, as it provides findings relevant to the criteria for rating the Veteran's visual impairments. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the examiner noted that private medical records were not reviewed, the Veteran's service treatment records and VA treatment records were reviewed. The examiner also considered the Veteran's full history.
The Veteran's representative argued in a statement located in the Virtual VA file and dated in August 2013 that the VA examination is too old to adequately evaluate the Veteran's disability. The Board notes that the visual acuity test conducted at the February 2010 examination had the same results as a test reported in the Veteran's VA treatment records dated in August 2005. Further, the examiner provided thorough findings and conclusions about the etiology of the Veteran's current vision problems. The Board finds that the examination was adequate to allow proper adjudication of the issues on appeal. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11- 95.
The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4).
II. Factual Background, Legal Criteria, and Analysis
A. Background
The Veteran lost his right eye in an accident during basic training in June 1969 when live ammunition was exposed to an open fire and exploded causing shrapnel to enter his right eye. The eye could not be saved and was surgically removed in August 1969. He was subsequently discharged from service and service-connected for the loss of his right eye. He originally received a rating of 30 percent. The rating was increased to 40 percent in April 1988. He filed a claim for service connection for a left eye disability secondary to his service-connected right eye enucleation in January 1999. The RO denied that claim in July 1999. He filed to reopen the service connection claim for a left eye disability and for an increased rating for his right eye enucleation in March 2008, the issues currently before the Board.
B. Service Connection for a Left Eye Disability
1. New and Material Evidence
The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171(1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board will therefore undertake a de novo review of the new and material evidence issue.
New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
New evidence means evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 271 (1996). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998).
When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."
As discussed in the introduction, a review of the record shows that the Veteran's service connection claim for a left eye disability was denied in July 1999. The Veteran was informed of the decision and failed to file a notice of disagreement to initiate an appeal. Consequently, that decision became final. 38 U.S.C.A. § 7105.
The evidence at the time of the July 1999 rating decision consisted of the Veteran's service treatment records and VA treatment records that were not related to the Veteran's left eye. The RO requested that the Veteran submit medical evidence providing support for his claim. The Veteran failed to provide any evidence and the claim was denied.
Pertinent evidence received since the July 1999 decision includes the Veteran's assertion that his left eye disability was caused by his right eye enucleation, VA treatment records, a private eye examination conducted in January 2009, and a VA eye examination conducted in February 2010.
Overall, the evidence received since the July 1999 rating decision is new and relates to an unestablished fact necessary to substantiate the Veteran's claim that he has a current left eye disability related to service. Specifically, the VA examination diagnosed current left eye problems. For this reason, the Board concludes that the Veteran has presented new and material evidence to reopen his claim for service connection for a left eye disability.
2. Service Connection Criteria
The Veteran is claiming service connection for a left eye disability, to include as secondary to his service-connected right eye enucleation. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) ; Allen v. Brown, 7 Vet. App. 439 (1995).
Thus, service connection on a secondary basis may be granted under one of two conditions. The first is when the disorder is proximately due to or the result of a disorder of service origin. In that case, all symptomatology resulting from the secondary disorder will be considered in rating the disability. The second is when a service-connected disability aggravates a nonservice-connected disability. In those cases, VA may only consider the degree of disability over and above the degree of disability prior to the aggravation.
VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b).
In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2).
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b).
3. Service Connection Analysis for Left Eye Disability
The Veteran claims that he suffers from blurred vision and floaters in his left eye. He further asserts that the condition of his left eye has progressively deteriorated ever since he lost his right eye. In his notice of disagreement dated in August 2009, the Veteran claims that he has a "question mark shaped floater" in front of his line of sight which greatly hinders his ability to read and perform daily life tasks. He also claims to have a continuous white haze in front of his field of vision which constantly obscures his field of vision.
In making a decision, the Board considered the following pieces of evidence: a VA examination, a private examination, VA treatment records, service treatment records, and lay statements. Each piece of evidence will be discussed in turn.
The Veteran was provided a VA examination in February 2010. At that time, he reported that his left eye problems are caused by strain from not having a right eye. He also claimed he started experiencing floaters 15 years earlier.
The examiner found that diplopia was not present and there was no visual field defect. Further, there were no physical findings of abnormal accommodation, abnormal lacrimal duct function, abnormal eyelids, chronic conjunctivitis, lagophthalmos, symblepharon, ptosis, nystagmus, eyelash loss, or eyebrow loss. Central visual acuity for distance vision was 20/50 uncorrected and 20/25 corrected. Near vision was 20/100 uncorrected and 20/25 corrected.
The Veteran was diagnosed with subjective vitreous floaters and mild nuclear sclerosis cataract in the left eye. The examiner opined that the Veteran does not have a current left eye disability caused by or related to the loss of the right eye. The examiner reported that the "medical literature is clear that the loss of one eye does not cause any degenerative conditions over time due to excessive strain from using the remaining eye."
Further, the examiner reported that "[f]loaters are caused by age-related liquefaction and syneresis of the vitreous and has no relation to the enucleation of the right eye. [The Veteran] also has mild nuclear sclerosis cataracts that is also considered age-related and has no relation to the enucleation of the right eye. The examination also found evidence of moderate optic nerve cupping in the left eye with normal intraocular pressure and normal Goldman visual field. The optic nerve cupping would make the Veteran a primary open angle glaucoma suspect...However, primary open angle glaucoma also has no relation to the enucleation of the right eye." Therefore, concluded the examiner, the Veteran does not have any left eye conditions that are caused by or a result of the right eye enucleation.
The VA examiner's report clearly weighs against the claim. Although the examiner did not specify that there was no aggravation, his statement that there was no left eye disorder that was "related to" the right eye enucleation is a very broad statement which under the circumstances of this case rules out the possibility of a relationship of aggravation. Moreover, the examiner's explanation of the actual causes of the Veteran's right eye problems further weighs against a finding of aggravation.
The Board reviewed the results of the private eye exam conducted in January 2009. Those results were not as detailed and the private examiner did not offer any opinion on the etiology of any problems with the Veteran's left eye. The only difference the Board notes is that the visual acuity test had different results. Distance and near vision were corrected to 20/40 at the private examination and 20/25 at the VA examination.
The Board also reviewed the Veteran's VA treatment records and service treatment records. The VA treatment records, dated from July 2005 to March 2009, show that the Veteran has complained of floaters since July 2005 and he underwent an eye evaluation in August 2005. However, the records do not offer any further information regarding the etiology of the Veteran's left eye conditions. The service treatment records do not indicate that the Veteran made any complaints about his left eye or was treated for any problems with his left eye. In fact, at an examination in October 1969, the Veteran was reported to have no issues with his left eye after a clinical evaluation of visual acuity and refraction. The Veteran's left eye visual acuity was reported as 20/20.
The Veteran provided lay statements in support of his claim. As discussed above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran is not competent to provide a medical diagnosis and medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007).
He alleges that his left eye condition resulted from the loss of his right eye. The Board notes that the Veteran is not competent to make this diagnosis. In his VA Form 9 dated in March 2010, the Veteran claims that he is relying on "common sense" to assert that the loss of his right eye must have had an impact on his left eye. He explains that the optic nerves are connected, which means that his left eye problems are related to the loss of his right eye. However, there is no competent medical evidence offered in support of his assertions. Instead, the competent VA medical opinion specifically concluded that the loss of the right eye is not related to the Veteran's left eye problems.
The Board gives greater probative weight to the competent medical opinion over the Veteran's assertions. While the Veteran has some documented problems with his left eye, those conditions were not caused by or aggravated by the loss of his right eye. Therefore, the Board finds that service connection cannot be granted on a secondary basis.
The Board also finds that service connection cannot be granted on a direct basis. As discussed above, the Veteran did not complain of any problems or receive treatment for any left eye problems during service. Further, there is no medical or lay evidence in the record that indicates that the Veteran complained of any problems with his left eye until 2005, over 35 years after he was discharged from service. He did claim at the VA examination that he began suffering from floaters in 1995, but that is 25 years after service. Therefore, the Board finds that the Veteran is not entitled to service connection for his left eye conditions.
C. Increased Rating for Right Eye Enucleation
1. Increased Rating Criteria
Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155. Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of the disability present. 38 C.F.R. §§ 4.1, 4.2. An increased rating is assigned if it more nearly approximates such rating. See 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.
The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. The original rating decision granting service connection for right eye enucleation was in November 1969. Consequently, the Board will evaluate the Veteran's right eye disability as a claim for an increased rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Id.
Consideration must be given as to whether an increase or decrease is warranted at any time within the pendency of the appeal, a practice known as "staged" ratings. See Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.
2. Increased Rating Analysis
As mentioned above, the Veteran had his right eye surgically removed after an accident in 1969. He is currently rated under DC 6063, anatomical loss of one eye, at 40 percent disabling. None of the other diagnostic codes covering disabilities of the eye are applicable to the Veteran's condition.
Under DC 6063, a rating of 40 percent disabling is warranted when the remaining eye's visual acuity is 20/40. A rating of 50 percent is warranted when the remaining eye's visual acuity is 20/50. A rating of 60 percent is warranted when the remaining eye's visual acuity is 20/70 or 20/100. A rating of 70 percent is warranted when the remaining eye's visual acuity is 20/200. A rating of 80 percent is warranted when the remaining eye's visual acuity is 15/200. A rating of 90 percent is warranted when the remaining eye's visual acuity is 10/200. Finally, a rating of 100 percent is warranted when the remaining eye's visual acuity is 5/200.
As discussed above, the Veteran had his visual acuity measured at a private examination in January 2009 and at a VA examination in February 2010. Evaluation is based on best corrected distance vision. 38 C.F.R. § 4.76(b)(1). At the private examination, the Veteran's corrected distance vision was 20/40. At the VA examination, the Veteran's corrected distance vision was 20/25. Neither test indicates the Veteran's visual acuity as being 20/50 or worse. Further, there are no other tests in the Veteran's VA treatment records that record his corrected distant visual acuity as 20/50 or worse. In August 2005, his corrected distance visual acuity was measured as 20/25. Therefore, the Veteran is not entitled to a higher rating under DC 6063.
The Veteran claims that his vision is worse and he should be given an increased rating. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran is not competent to provide a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this instance, the visual acuity tests are clear and unmistakable. In fact, the Veteran's representative indicated in a statement located in the Virtual VA file and dated in August 2013 that the Veteran's visual acuity is 20/40 in the left eye.
However, the Representative argues that an increased rating should be granted because the right and left eyes should be rated under the paired organ rule. Under the paired organ, both eyes will be rated as if they are service connected if (1) visual acuity in both eyes is 20/200 or less; or (2) peripheral field of vision in both eyes is 20 degrees or less. 38 C.F.R. § 3.383(a)(1). Neither of these two scenarios applies in this case. The Veteran's vision acuity is 20/40 and the VA examiner found that the Veteran has no visual field defect. Therefore, the paired organ rule does not apply.
Based on the evidence of record, the Board concludes that a rating in excess of 40 percent is not warranted.
3. Extraschedular Consideration
Finally, an extraschedular evaluation is for consideration where service-connected disabilities present an exceptional or unusual disability picture. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disabilities. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.
The Board finds that the schedular evaluation assigned for the Veteran's service-connected right eye enucleation is adequate. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. Further, the clinical evidence demonstrates that the Veteran has not been hospitalized for his disability and the record indicates he works full-time. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Board notes that the Veteran has not contended, nor does the evidence show that his disability renders him unemployable. The VA examiner reported in February 2010 that the Veteran works full-time as a quality control manager. Therefore, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
ORDER
1. Service connection for left eye disability, to include as secondary to service-connected right eye enucleation, is denied.
2. Entitlement to an increased rating for right eye enucleation, currently rated as 40 percent disabling, is denied.
____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs